21.9.2013

Official Journal of the European Union

C 274/16

(Case C-415/13 P)

2013/C 274/28

Language of the case: Polish

Parties

Appellant: Fabryka Łożysk Tocznych-Kraśnik S.A. (represented by: P. Borowski, adwokat)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Impexmetal S.A.

Form of order sought

The appellant claims that the Court should:

—set aside in its entirety the judgment of the General Court and allow in full the application of 9 January 2012 by annulling the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 27 October 2011;

—should that head of claim not be upheld, set aside the judgment of the General Court in its entirety and refer the case back to the General Court for reconsideration;

—order the other parties to the appeal to pay the costs of the proceedings, including the costs incurred by the appellant before the Board of Appeal and Opposition Division of the Office for Harmonisation in the Internal Market and those incurred in the proceedings before the General Court.

Pleas in law and main arguments

The appellant submits that the General Court breached Article 8(1)(b) of Regulation No 207/2009 (1) by applying it in a factual context to which that provision could not apply.

According to the appellant, the incorrect application of that provision was attributable to a mistaken finding by the General Court that the appellant’s trade mark was similar to the trade mark of the intervener and that consequently there was a likelihood of confusion on the part of the public. The appellant maintains that the General Court failed to have regard for the following facts:

—goods coming under the designation ‘machines and tool-making machines’, which are covered by the appellant’s mark, and goods coming under the designation ‘bearings’, which are covered by the intervener’s mark, are characterised by the fact that they differ significantly and are certainly not complementary goods;

—the appellant’s mark and that of the intervener differ significantly in visual terms;

—the appellant’s mark contains within it a word element in the form of the noun ‘Kraśnik’, which has a crucial bearing on the differences, in visual, phonetic and conceptual terms, between the opposing marks;

—the appellant’s mark and that of the intervener differ significantly in phonetic terms;

—the appellant’s mark constitutes part of the name of his undertaking, and that name was in use long before the date of the trade-mark application;

—that mark is a historically established sign which distinguishes the appellant;

—the marks in question have for a long time peacefully co-existed on the one market;

—the similarity between the opposing marks does not justify any claim whatsoever that this might be the source of a likelihood of confusion.

Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified version) ( OJ 2009 L 78, p. 1).